Deepu Kashyap v. State of U.P

Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17283 of 2023 Applicant :- Deepu Kashyap Opposite Party :- State of U.P. Counsel for Applicant :- Rakesh Kumar Rathore,Sanjeev Kumar Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.

¶1Heard Sri Sanjeev Kumar, learned counsel for the applicant and Dr. S.B. Maurya, learned AGA-I for the State.

¶2The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 570 of 2022, under Sections 8/21 N.D.P.S. Act, Police Station Kotwali, District Mainpuri during pendency of the trial.

¶3Learned counsel for the applicant submitted that this is second bail application filed on behalf of the applicant. The first bail application of the applicant was dismissed by this Court vide order dated 04.01.2023 passed in Criminal Misc. Bail Application No. 47985 of 2022 and he is pressing the instant second bail application on the ground that at the time of first bail application, it could not be argued that there is violation of Section 52-A of N.D.P.S. Act as from the perusal of the recovery memo it reflects that sample was drawn at spot and it has not been drawn before the Magistrate. He further submits that applicant is not having any previous criminal history and in the present matter he is in jail since 31.08.2022 i.e. for more than a year.

¶4Per contra, learned AGA opposed the prayer for bail and submitted that from the possession of applicant 200 grams Alprazolam powder was recovered which is commercial quantity, therefore, first bail application of the applicant was dismissed but he could not dispute the fact that at the time of deciding first bail application the point of violation of provision of Section 52-A of N.D.P.S. Act could not be placed and further applicant is not having any criminal history and he is in jail since August, 2022 i.e. for more than a year.

¶5I have heard learned counsel for the parties and perused the record of the case.

¶6Although, this is second bail application filed on behalf of the applicant and first bail application of the applicant was dismissed by this Court vide order dated 04.01.2023 and it also reflects that from the possession of applicant 200 grams Alprozolam powder was recovered, which is commercial quantity but it also reflects from the first bail order that at the time of passing it, the point with regard to violation of Section 52-A of N.D.P.S. Act could not be placed.

¶7From the record, it reflects that sample has been drawn at spot and it has not bee drawn before the Magistrate. The Apex Court in the cases of Mangilal Vs. The State of U.P. 2023 SCC Online 862 and Simarnjit Singh Vs. State of Punjab 2023 SCC OnLine SC 906 observed that if sample has been drawn at spot and not before the Magistrate then it is violation of mandatory provision of Section 52-A of N.D.P.S. Act and on this ground the recovery becomes doubtful.

¶8Recently, the Apex Court in the case of Yusuf @ Asif Vs. State 2023 SCC OnLine SC 1328 clearly observed that if there is violation of Section 52-A of N.D.P.S. Act then entire trial would be vitiated. Further, applicant is not having any criminal history and in the present matter he is jail since August, 2022 i.e. for more than a year.

¶9Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

¶10Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

¶11Let the applicant -Deepu Kashyap be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

(ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.

(iii) The applicant shall not indulge in any criminal and anti-social activity.

¶12In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

¶13It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 17.10.2023 AK Pandey High Court of Judicature at Allahabad